What Bill Cosby should say about the rape allegations and why it matters.

Recently our most beloved television dad and most famous Jell-O spokesman found himself embroiled in controversy. As most of you may know, Barbara Bowman is back in the news, based upon allegations that Bill Cosby drugged and raped her back in 1985 along with twelve other women over time. While the events are old it is not surprising that recent revelations would merit some media attention. After all, thirteen is a pretty big number. What makes this odd is that these are not new “revelations”. This story has been out here since at least 2004. So why all of the attention now? Could it be because Cosby has a few new projects coming up including another TV series? Or was it, as some say, because a male comedian, Hannibal Burress, raised attention to it during a stand-up routine? Is it connected to a change in society, or a change in female power in media, that is bringing this forth? I can not tell you which of these, or if all of them, are responsible for what is going on with the new attention. What I can tell you is what Bill Cosby, or anyone else in his position (is there anyone else in his position?) should say.

Not a damn thing.

Certainly there are people clamoring for Cosby to say something on the matter, but that says more about them than it does about the situation. What exactly is he supposed to say that will quench the thirst of those who want to see him pay for alleged crimes or for those who want clarification? Statements will only feed the story while at the same time illuminate nothing. At this stage, it is a gigantic case of “He said. she said” with virtually no way to prove or disprove the allegations. With many years between when the alleged events happened and today, there is likely nothing that can substantiate or disprove anything. All Cosby can say, if he speaks at all is, “It is not true and here is why” which for many people will not satisfy a thing. For many his denials will merely be what we expect a guilty man to say, which automatically makes you wonder what are innocent men expected to say. The only time someone suspected of a crime should talk about the crime is in a court of law. I have seen far too many times, including in my life, where you learn quickly that those inclined to not believe you, still will not. Those inclined to believe that women do not lie about such things will continue to do so. Those inclined to believe they often do will continue to do so. And since the accusations of these women, whether true or not, won’t be played out in a court of law, then Cosby has nothing to gain by playing this out in a public sphere. He is wealthy, famous, and can probably withstand the hit his image is taking now. But, he is a lucky one.

Dr. Cosby finds himself dealing with the continual pressure now being floated about in our society and encouraged by many more all of the time that our constitutional principles should be disregarded in cases of sexual assault allegations. There is a movement about to ensure that the mere accusation will be sufficient to warrant an arrest and a conviction. There are efforts that the accusation alone should be enough to warrant expulsions from school. Having tried some sexual assault cases from both sides of the table, I can fully understand that desire. Sexual assault cases are landmines. Landmines in one of the most difficult realities we have. To presume the accused innocent, which the law requires, what does that require us to think of the alleged victim? To steal from the bard, here is the rub. For the defenses most available to the accused are that he had her consent for sex or that no sexual conduct took place at all. So from the outset, we can only presume she is in error or that she is lying. Even though there is not one jury instruction stating such, these are the two presumptions we are really faced with. That is a hard road to travel upon. Yes, the prosecution is under no obligation to have that presumption, but the prosecution does have the burden of getting over that unspoken presumption in addition to the lawfully stated one.

Many so-called “feminists” may cringe at that idea and cry out that it shows an inherent bias against women (Which it may. We are still pretty new at addressing sexual assault in ways that neither brutalizes nor infantilizes females). But, what exactly is the alternative? Let them have their way and suddenly the accused has the burden of proving a negative, specifically that he committed no crime. And history has shown us that in cases of cross-racial rape accusations of sexual assault, the defendant of color often finds himself in that very position, having to prove his innocence which is just as hard, if not harder than proving guilt.

Ms. Bowman calls for an end to the Statute of Limitations in Sexual Assault cases, which is a good idea under certain circumstances and a dreadful idea in others. In some states, so long as there is evidence recovered, even though the police may not have a suspect at the time, the Statute tolls. This means that should a suspect be named ten or twenty years later, he or she can still be prosecuted. Evidence having been preserved a defendant may challenge that evidence in a fair proceeding. But, what about the situation with Ms. Bowman and her fellow accusers? Because there was no reporting, there was no collection of evidence. Can we really expect prosecutors to work with nothing when evidence that can create a conviction is long since lost? Or can we fairly expect defendants to have fair proceedings when evidence that could help their case is long gone? We need to ensure that emotions do not lead us to creating bad changes to the evidence code.

As for the Cos, I can truly say I have no idea what happened. Admittedly, I won’t be paying much attention to Ms. Bowman after this posting because I already did almost a decade ago. I have no evidence of anything either way and I know I won’t see any anytime soon. What other people pay attention to is their business. Should the public shun him, I can not say that I will consider it some great tragedy. It is show business and the public is a fickle little beast and thirteen is a big number. If they have decided ten years too late that this is an issue for them, there is no stopping them.  And if his career fades out at 77 years old, well, he already had one of the most amazing runs in entertainment. He is not the one I worry about. I worry far more about the people with no fame, no power, and who, once the accusation is out there, can never escape it. Even years later, whether triumphant in a court of law or having never had a case get that far. Once the accusation is out, it is out. And for those trying to climb ladders, as opposed to already being on top of the world, it can take ages to get back on track, if ever.

And here, no doubt, is where someone will scream “victim shaming!” and “what about the victim?!” and those people will have missed the point. I don’t know if there is one. If protestations of innocence or refusal to dignify accusations with a response is insufficient to presume innocence, then accusations alone are insufficient for me to presume guilt. And without that, I can not presume there is a victim. There may very well be one, but I can not presume there is. Others are able to make that presumption, and so long as they are not in a jury box, they have every right to do so. There are, after all, no rules when it comes to the court of public opinion. No rules of evidence, no rules of procedure, no rules of fairness. Certainly a sense of what it deems fair, but no rules about it. So, he should not even play there. No one should play there when there is no chance of winning. Just walk away. It will frustrate and annoy many, but this is a game about salvaging what you can. Not trying to keep what you can not.